In re Bellah, 8 Del. Ch. 59

In re Bellah

8 Del. Ch. 59 | New York Court of Chancery | 1896

The Chancellor,

after having duly considered the allegations and prayers of the petition, was of opinion that the acts of the trustee as set forth by him in the petition had been performed because of the necessities of the case and were for the b.est interests of the cestui que trust, and for the benefit of the trust fund, and, it appearing that the authority asked for by the trustee was necessary in order to preserve the corpus of the trust fund, the same ought to be granted.

*62He was also of opinion that the action of the trustee in the foreclosure of the mortgage and the sale of the mortgaged premises and the purchase of the same by him should be approved, and that he should take title to the property as trustee, at the same time stating that this is a power to be exercised by the Court of Chancery with extreme caution, and only when clearly required for the benefit of all interested and for the preservation of the corpus of the trust fund.

He also considered that it was manifestly proper, in view of the approval by the Court of this action, that the necessary costs and expenses of the proceedings, including counsel fees incurred, should be paid out of the trust fund; and that the trustee should have power to grant leases and cancel and renew the same, or sell and convey the premises under the direction of the Court, at public or private sale and upon such terms as should be most advantageous to the trust fund; and that the said trustee should hold the real estate as a part of the trust fund bequeathed in said Fourth Item of the recited will.

The following' decree was entered:

And Now To Wit, This eleventh day of April, A. D. 1896, the petition of Edward T. Bellah, Trustee for Anna R. Hollingsworth, having been read by the Chancellor, and by him maturely considered, and it being considered by the Chancellor that the acts of the said Trustee therein set forth have been performed because of the necessities of the case, and are for the best interests of the said cestui que trust and for the benefit of the said trust fund, and it further appearing from the facts and case presented upon said petition that the prayers of said petitioner are proper and ought to be granted:

Now Therefore this Court orders, driects, adjudges and decrees that the action of said Trustee in the foreclosure of said mortgage, the sale of said mortgaged premises under the writ of Levari Facias in said petition mentioned and the purchase by said Trustee of the said lands at said sale in his character of Trustee be, and the same are hereby approved; *63that the said Trustee take title to said property, so purchased by him as Trustee as aforesaid, in the name of him, the said Edward T. Bellah as Trustee as aforesaid; that the said Trustee be and he is hereby authorized to pay out of said trust fund the necessary and proper Court costs in obtaining a deed for said lands from the said Sheriff, and the costs of this present proceeding, and the Counsel fees incurred in this present petition and in the said foreclosure proceedings on said mortgage; that the said Trustee shall have and exercise with reference to said real estate the rights, powers, and duties, to grant leases of said lands and premises, and the same to cancel and renew as necessity may require, to sell and convey the said premises whenever occasion may offer, under the order and direction of this Court either at public or private sale, upon such terms as to cash or credit, as may be possible and advantageous to the said trust fund, and without responsibility on the part of the purchaser or purchasers thereof to see to the application, non-application or mis-application of the purchase money therefore; that the said Trustee hold said real estate, as a part of the said trust fund, so bequeathed by the said Elijah Hollingsworth, in and by the said fourth item of his said last will and testament, subject, however, to such further orders, directions and decrees of the Chancellor of and concerning the same, as may be made at any time hereafter; and the said Trustee shall account for all the rents, issues, and profits of said real estate as a part of the income of said trust fund.

Note.—See In re Baker, Trustee, post, and Note.